veterans’ review board

Veterans’ Review Board

Bruce Topperwien 2004 Veterans’ Law Conference Banora Point NSW

Relaxed Evidentiary Rules in Veterans’ Legislation

History of the relaxed evidentiary rules

Empirical study of the effect of relaxed evidentiary rules



History of Evidentiary Provisions

pre-1929 — no relaxed evidentiary provisions





1929 — War Pensions Entitlement Appeal Tribunal:

• ‘not ... bound by any rules of evidence’

• must ‘act according to substantial justice and the merits’

• give appellant ‘benefit of the doubt’

• onus on appellant to make ‘prima facie case’

• only then an onus on Commission to disprove





1929 — War Pensions Entitlement Appeal Tribunal:

• ‘not ... bound by any rules of evidence’


• give appellant ‘benefit of the doubt’

• onus on appellant to make ‘prima facie case’

• only then an onus on Commission to disprove

1933 — Bott’s case (HC) rules of evidence cannot be ignored but should be used as a guide to the weight to be given. – R. v War Pensions Entitlement Appeal Tribunal; Ex parte Bott (1933)




1943 • relaxed rules to apply to all decision-makers





• ‘not ... bound by ... rules of evidence’







• give claimant ‘benefit of any doubt’ as to:

• the existence of any favourable fact; or

• any question arising in the case










• no onus on claimant to produce any evidence











• must draw ‘all reasonable inferences in favour of claimant’











• must draw ‘all reasonable inferences in favour of claimant’

• onus on Commission to disprove




Statements concerning the meaning of 1943 provisions

1944 — G J O’Sullivan, Chairman No. 1 WPEAT ‘approximates to the burden of proof in a criminal trial’






1953 — Attorney-General Spicer claim should succeed unless disproved beyond reasonable doubt







1953 — A W Riordan ((1953) 27 Australian Law Journal 315) • there is a compelling presumption of attributability to service • called for right of appeal to a Court, as law not applied in practice







1953 — A W Riordan ((1953) 27 Australian Law Journal 315) • there is a compelling presumption of attributability to service • called for right of appeal to a Court, as law not applied in practice

1960 — Attorney-General Barwick If the state of decision-maker’s mind is in equipoise, the claimant must succeed. But facts going against the claimant must be proved beyond reasonable doubt.




Statements concerning the meaning of 1943 provisions (cont.)

1975 — Toose J - Inquiry into the Repatriation System • where there are competing inferences, any reasonable inferences favouring the claimant should be drawn.

• benefit of the doubt should only apply at the end of the process of inference drawing and fact-finding and then only if a doubt arises.

• the criminal burden of proof, ‘beyond reasonable doubt’, does not apply.




Statements concerning the meaning of 1943 provisions (cont.)

1981 — Aickin J (with Gibbs CJ, Stephen & Mason JJ agreeing) (Repatriation Commission v Law (1981) 147 CLR 635 at 639)

‘… the onus of proof was placed on the Commission. The nature of the onus was not stated specifically but there can be no doubt that it was the ordinary civil onus, i.e. that of proving the material facts on the balance of probabilities, but it was an onus which required that degree of proof of a negative proposition. The precise operation of the “benefit of any doubt” in such a context is not altogether clear but presumably it meant no more than a doubt as to the balance of probabilities in respect of each of the matters on which entitlement depended.’




Toose Report – 1975

• noted considerable dissatisfaction & frustration concerning the application of the section.

• the Act should be amended to make the law clear.




1977 Amendments

• not bound by rules of evidence.

• act in accordance with substantial justice and merits.

• shall take into account the effects of passage of time and absence of official records, etc.

• shall grant a claim ‘unless … satisfied, beyond reasonable doubt, that there are insufficient grounds for granting the claim’.




1979 • abolition of War Pensions Entitlement Appeal Tribunal

• creation of Repatriation Review Tribunal and right of appeal to Federal Court of Australia.




1979 • abolition of War Pensions Entitlement Appeal Tribunal

• creation of Repatriation Review Tribunal and right of appeal to Federal Court of Australia.

1980 — Law v Repatriation Commission (Federal Court)

1980 — Repatriation Commission v Law (Full Federal Court)

1981 — Law v Repatriation Commission (High Court)

• criminal standard of proof applies

• onus of disproof on Commission




Effect of Law’s case – Acceptance rate by Repatriation Review Tribunal

0%10%20%

30%40%50%60%

70%80%90%

1979-80 1980-81 1981-82 1982-83

Federal Court Full Fed Court High Court




1984 • abolition of Repatriation Review Tribunal

• creation of Veterans’ Review Board and right of appeal to Administrative Appeals Tribunal and then right of appeal to Federal Court of Australia




March 1985 — Repatriation Commission v O’Brien (High Court)

• claim can be accepted even without any evidence to support it.

• possibility of connection to service can be ‘left open’ by the evidence.




March 1985 — Repatriation Commission v O’Brien (High Court)

• claim can be accepted even without any evidence to support it.

• possibility of connection to service can be ‘left open’ by the evidence.

May 1985 — Mini budget

• retain beyond reasonable doubt only for those who rendered operational or peacekeeping service but claim not to be granted unless a reasonable hypothesis is raised by the material and that hypothesis had not been dispelled.

• all other claims determined to decision-maker’s reasonable satisfaction.




1986 — Veterans’ Entitlements Act 1986 enacted

• no presumption of entitlement.

• no onus on any party.

• deemed to be satisfied beyond a reasonable doubt if a reasonable hypothesis is not raised by the material.




1986 — Veterans’ Entitlements Act 1986 enacted

• no presumption of entitlement.

• no onus on any party.

• deemed to be satisfied beyond a reasonable doubt if a reasonable hypothesis is not raised by the material.

1987 — East v Repatriation Commission (Full Federal Court)

• a reasonable hypothesis must be more than a possibility, though not proved on the balance of probabilities, consistent with known facts.

• a reasonable hypothesis must not be fanciful, impossible, incredible, not tenable, too remote too tenuous.




1992 — Bushell v Repatriation Commission (High Court)

• ‘raising’ a reasonable hypothesis does not involve deciding the facts, merely whether the material raises facts that, if true, the hypothesis would be reasonable.

• it would be exceptional if a hypothesis were not held reasonable if proposed by an eminent medical practitioner in the relevant field of expertise.




1993 — Byrnes v Repatriation Commission (High Court)

Step 1: Do all or some of the facts raised by the material before the Commission give rise to a reasonable hypothesis connecting the veteran's injury with war service?




1993 — Byrnes v Repatriation Commission (High Court)

Step 1: Do all or some of the facts raised by the material before the Commission give rise to a reasonable hypothesis connecting the veteran's injury with war service?

Step 2: If a reasonable hypothesis is established, the claim will succeed unless:

(a) one or more of the facts necessary to support the hypothesis are disproved beyond reasonable doubt; or

(b) the truth of another fact in the material, which is inconsistent with the hypothesis, is proved beyond reasonable doubt,

thus disproving, beyond reasonable doubt, the hypothesis.




1994 — Legislative reaction to Bushell’s case

Creation of Repatriation Medical Authority (RMA) and Statement of Principles (SoP) system by which:

• a hypothesis cannot be reasonable unless upheld by a SoP determined by the RMA

• a decision-maker cannot be reasonably satisfied of connection to service unless the contention of connection is upheld by a SoP determined by the RMA




1998 — Repatriation Commission v Deledio (Full Federal Court) as modified by Bull v Repatriation Commission (2001) (Full Federal Court)

Step 1: consider all the material and determine whether it points toa hypothesis.






Step 2: decide whether the RMA has made a SoP.







Step 3: decide if the hypothesis is reasonable by reference to East criteria, and if there is a SoP, it must fit the template of that SoP.








Step 4: if the hypothesis is reasonable decide whether it isdisproved beyond reasonable doubt.








Step 4: if the hypothesis is reasonable decide whether it isdisproved beyond reasonable doubt.

Byrnes Step 1

Byrnes Step 2



Empirical study of effect of relaxed evidentiary rules

• Aims of the study

• Method of data collection

• Results




Aims of the study:

Central question: Parliament has provided for more beneficial standards of proof for particular classes of veterans. Does the requirement to apply different standards make a real difference?

The study aimed to assess the effect, if any, on case outcomes of:

1. the different standards of proof and different SoPs;

2. the relaxed rules in s 138 (equivalent to s 119); and

3. the pre-1977 evidentiary rules (‘benefit of the doubt’),

as they are applied, or might be applied, by Veterans’ Review Board (VRB) members.




Study Method:

VRB members were asked, over a 6 week period, to complete a questionnaire each time they decided an entitlement matter.

The survey asked:

• one set of questions if the claim was GRANTED under the reasonable HYPOTHESIS rules; and

• another set of questions if the claim was REJECTED under the reasonable SATISFACTION rules.

The questions were designed to test how the outcome in each case might have been affected if the rules had been different.




Participation in the survey — the response rate:

Over the 6 weeks there were: 720 hearings involving 3 members per hearings; 60% involved entitlement issues; with an average of 1.2 entitlement issues per hearing; 80% involved reasonable hypothesis; 20% involved reasonable satisfaction; 18% of entitlement matters of each type were granted.There were potentially 224 reasonable hypothesis responses; and 255 reasonable satisfaction responses.

Actual responses were 103 and 119, respectively.

Thus nearly a 50% participation rate by VRB members.




Questions if claim granted under reasonable hypothesis rules:

1A. Would the result have been the same if you had applied the reasonable SATISFACTION standard with the reasonable HYPOTHESIS SoP?

Yes

Maybe

No

41% Yes

27% Maybe

32% No





1A. Would the result have been the same if you had applied the reasonable SATISFACTION standard with the reasonable HYPOTHESIS SoP?

Yes

Maybe

No

41% Yes

27% Maybe

32% No

32% of grants would have been rejected. 27% of grants might have been rejected.





1A. Would the result have been the same if you had applied the reasonable SATISFACTION standard with the reasonable SATISFACTION SoP?

Yes

Maybe

No

42% Yes

16% Maybe

42% No





1A. Would the result have been the same if you had applied the reasonable SATISFACTION standard with the reasonable SATISFACTION SoP?

Yes

Maybe

No

42% Yes

16% Maybe

42% No

10% more cases would have been rejected. The different SoP increased the certainty of rejection.





1C. Did the s 138 rules affect the result?

Yes

Maybe

No

30% Yes

6% Maybe

64% No

s 138(1) provides that VRB:– is not bound by rules of evidence– must act according to substantial justice and the merits, taking into account difficulties in deciding facts, e.g., due to: · passage of time · availability of witnesses · deficiency in official records





1C. Did the s 138 rules affect the result?

Yes

Maybe

No

30% Yes

6% Maybe

64% No

s 138(1) provides that VRB:– is not bound by rules of evidence– must act according to substantial justice and the merits, taking into account difficulties in deciding facts, e.g., due to: · passage of time · availability of witnesses · deficiency in official records

30% of grants would have been rejected. 6% of grants might have been rejected.





1D. If YES or MAYBE to 1C, which s 138 rule(s)?

Of the 36% who answered that the decision to grant may have been affected by s138, the following factors influenced the decision:

Hearsay

Passage oftimeUnavailablewitnessesDeficientrecordsOther

11% Hearsay

26% Passage of time

17% Unavailable witnesses

37% Deficient records

9% Other




Questions if claim rejected under reasonable satisfaction rules:

2A. Would the result have been the same if you had applied the reasonable HYPOTHESIS standard with the reasonable SATISFACTION SoP?

Yes

Maybe

No

64% Yes

18% Maybe

18% No





2A. Would the result have been the same if you had applied the reasonable HYPOTHESIS standard with the reasonable SATISFACTION SoP?

Yes

Maybe

No

64% Yes

18% Maybe

18% No

18% of rejections would have been grants. 18% of rejections might have been grants.





2B. Would the result have been the same if you had applied the reasonable HYPOTHESIS standard with the reasonable HYPOTHESIS SoP?

Yes

Maybe

No

59% Yes

11% Maybe

30% No





2B. Would the result have been the same if you had applied the reasonable HYPOTHESIS standard with the reasonable HYPOTHESIS SoP?

Yes

Maybe

No

59% Yes

11% Maybe

30% No

12% more cases would have been accepted. The different SoP increased the certainty of acceptance.





2C. If the law were that the applicant had to be given the ‘benefit of the doubt’ would this have affected the result?

Yes

Maybe

No

24% Yes

20% Maybe

56% No





2C. If the law were that the applicant had to be given the ‘benefit of the doubt’ would this have affected the result?

Yes

Maybe

No

24% Yes

20% Maybe

56% No

Up to 44% of ‘reasonable satisfaction’ rejections might have been grants applying a ‘benefit of the doubt’ rule.





Of those who answered ‘yes’ to both 2A and 2B, that is the claim would have been rejected applying the reasonable hypothesis rules, 6% would have granted and 13% might have granted under a “benefit of the doubt” rule.





Of those who answered ‘yes’ to both 2A and 2B, that is the claim would have been rejected applying the reasonable hypothesis rules, 6% would have granted and 13% might have granted under a “benefit of the doubt” rule.

Up to 19% of cases rejected under the most beneficial current rules would have been accepted under a ‘benefit of the doubt’ rule.





Of those who answered ‘no’ to both 2A and 2B, that is, the claim would have been granted applying the reasonable hypothesis rules, 43% would have rejected the claim under a ‘benefit of the doubt’ rule.





Of those who answered ‘no’ to both 2A and 2B, that is, the claim would have been granted applying the reasonable hypothesis rules, 43% would have rejected the claim under a ‘benefit of the doubt’ rule.

43% of cases accepted under the most beneficial current rules would have been rejected under a ‘benefit of the doubt’ rule.




Interpretation of ‘benefit of the doubt’

For a significant number of respondents (19%), a ‘benefit of the doubt’ rule would be more generous than the current ‘reasonable hypothesis’ rules.

For another significant number of respondents (43%), it would be less generous than the current ‘reasonable hypothesis’ rules.

This disparity of views is similar to the disagreement that existed regarding the meaning of ‘benefit of the doubt’ prior to 1977.



Conclusions

• If decision-makers are required to apply two standards of proof they appear to be able to differentiate between them to produce different outcomes.



Conclusions


• The standard of proof applying to a case affects the outcome in a substantial proportion of cases.



Conclusions



• The different standards within the SoPs make a small but significant difference to outcomes (affecting the outcomes in up to 12% of cases).



Conclusions




• Parliament appears to have achieved its intention to make it easier for veterans who have rendered operational service to obtain pensions than for veterans who have not.



Conclusions




• Parliament appears to have achieved its intention to make it easier for veterans who have rendered operational service to obtain pensions than for veterans who have not.

• A general instruction to give an applicant ‘the benefit of the doubt’ should be avoided as it tends to result in inconsistent interpretations and therefore inconsistent application.

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